Justice and Due Process

Choice in Indigent Defense

Joaquin Ciria spent thirty-two years imprisoned for a murder he didn’t commit. And while there is plenty of blame to go around since police pressured an accomplice to implicate Ciria and prosecutors offered an accomplice immunity to testify against Ciria, at least part of the reason he lost three decades of his life was that his defense attorney did not provide effective assistance of counsel. 

From the get-go, Ciria claimed he had been at home with his girlfriend and roommate at the time the murder occurred. Yet his attorney did not call the girlfriend, the roommate, or any other alibi witnesses at the trial. The attorney also didn’t play portions of the accomplice’s interrogation where police threatened to charge him if he didn’t implicate Ciria. This crucial evidence could have given the jury a basis for reasonable doubt and changed the outcome of the trial. Ciria’s defense attorney wrote a declaration years after the conviction stating he did not have a strategic reason for not calling alibi witnesses.

The right to trial and all the other substantive and procedural protections a defendant has are meaningless if a defense attorney cannot effectively vindicate those rights. Perhaps that’s why the Supreme Court has held that “The right to counsel is the right to effective assistance of counsel.”

Ineffective assistance of counsel is not a hypothetical problem. It is fairly standard for criminal appeals to include an ineffective assistance of counsel claim. And while a portion of these appeals claims are Monday-morning quarterbacking, some attorney behavior is unjustifiable under any standard.

Perhaps the most egregious failure of representation I personally witnessed involved a man accused of dealing large quantities of drugs. Because he was due to be deported, he was ineligible for pretrial release and was being held in the county jail pending a resolution of his case. A public defender was appointed, but it would be stretching the truth to say she “represented” him. 

For several months, she did nothing, repeatedly asking the court to continue the case and failing to attend the preliminary hearing. Seven months after her appointment, the defendant appeared in court, and in desperation, told the court through a translator that he had never seen his attorney and didn’t know who she was. His attorney promised to meet with him, but a few weeks later the defendant, over his attorney’s protestations that his words should not be translated, again told the court he still had never seen his attorney. Phone records showed that he had called the public defender’s office eighteen times, and only two calls had lasted longer than four minutes. Visitor logs showed that in over seven months of incarceration, his attorney had never visited him. 

While this example is extreme, it is illustrative of a systemic problem: indigent defendants have no recourse when their appointed attorney doesn’t measure up. This is especially concerning given that a majority of district court defendants are indigent. 

The problem stems from a decoupling of knowledge and incentives with decision-making power. 

A defendant is in the best position to know if his attorney is serving his interests. Is she returning his calls? Meeting with him? Listening to his side of the story? Explaining his options? A defendant also has more incentive than anyone else to be wise in selecting an attorney and vigilant in scrutinizing her subsequent performance. After all, it’s his freedom and future that are on the line.

However, indigent defendants have no control over who represents them. In Utah, counties award contracts to law firms to represent indigent defendants. However, the commissioners awarding the contracts lack the knowledge or incentive to do so in an informed way. They don’t attend court to monitor the performance of defense attorneys, and even if they did, they would lack the familiarity with each case to conduct a meaningful assessment. County commissioners have no personal skin in the game and since indigent defense tends to not be a hot-button issue in municipal elections, they have no political incentive to ensure that public defenders are up to snuff.

This is not to say that public defenders do not serve their clients well. Most are caring, capable, and deeply committed to representing their clients’ interests. Good public defender associations have effective internal oversight mechanisms to train, support, and monitor the performance of attorneys. But if all men were angels, we wouldn’t have a criminal justice system to begin with. There has to be a mechanism to deal with substandard performance, since it can and does occur with regularity.

One possible solution is suggested by an experiment in Comal County, Texas. In a pilot program, indigent defendants were divided into two groups. One group had counsel assigned, maintaining the status quo. The other group was allowed to choose from a list of approved lawyers. Choice yielded objective, measurable improvements: Defendants in the choice group were able to meet with their attorneys sooner, were more likely to obtain better plea bargains, and went to trial more often. Defendants in the choice group also saw subjective benefits: they were more likely to feel their lawyer had been honest with them, cared about them, wanted what was best for them, and treated them with respect. Defendants in the choice group flocked toward a handful of potential attorneys, indicating that there was a convergence of opinion on which attorneys were more skilled. The fact that these attorneys did in fact obtain better results for their clients suggests that given a choice, defendants can and do select better attorneys. 

Another possible model for choice would be to give vouchers to defendants. In addition to maximizing choice, this would allow for a sliding scale subsidy. Currently, if a defendant is deemed indigent, he gets an attorney at no cost. If he is not indigent, he bears the full cost of retaining an attorney which can be a significant economic hardship, even for someone of moderate means. This all-or-nothing system doesn’t reflect the economic reality that some individuals can contribute nothing, some can bear the entire cost, and most fall in the middle and can pay for some portion of their legal costs. A voucher could make up the difference after a defendant has paid what he can and would also give him the greatest freedom to select the attorney who will defend him in a way that reflects his goals and preferences.

Regardless of the specific method, client choice is likely to lead to better outcomes. When individuals are empowered to make choices about things that deeply impact them, they generally make better choices than people who are not part of the feedback loop and who personally have nothing on the line. Giving indigent defendants choice may also help them feel less like victims of a series of events happening to them and more like active participants in a legitimate system that gives them a meaningful opportunity to participate and be heard. 

If Joaquin Ciria had a choice of defense attorneys, maybe he would have chosen one who listened to his side of the story, that he was home watching movies, and who was willing to put on alibi witnesses.

If the defendant in my case had a voucher, you can bet he would have fired his attorney and taken his funds to an attorney who could be bothered to meet with him rather than leaving him to rot in jail. As it was, he had no effective remedy. Despite his pleas for help, the judge did nothing to intervene nor did his attorney’s supervisor or any regulatory body. 

Our adversarial system can be an effective way for all parties to have their interests protected and their side of the story heard, but only if defendants have an effective advocate to make their case. Structuring indigent representation so defendants, who have the best information and the most to lose or gain, are calling the shots and participating in selecting their attorney would go a long way to ensuring defendants have the effective assistance of counsel in every case.